Page 9 - Delaware Lawyer - Fall 2021

guaranteed by the English common law.4 The United States Constitution did not prescribe a format for either exercising or circumscribing state sovereignty. It sim- ply guarantees each state a “Republican Form of Government.” Although the framers had divided the national govern- ment into three branches with provisions which enabled each of them to check the potential excesses of the other two, the United States Constitution does not re- quire a state to separate the exercise of its own sovereign power horizontally: among an executive, a legislature and a judiciary. State constitutions also are not required to divide sovereign power vertically: between state government and local political subdi- visions. Thus, each state defines itself as a sovereign through the structure of govern-
ment set forth in its own constitution.5 Delaware and several other states be- gan to rewrite their constitutions almost immediately following the ratification of the United States Constitution. In exercis- ing their residual sovereign powers, states adopted constitutions that continued to adhere to the same basic principles, but from their own unique perspectives. These documents, like Delaware’s 1792 Con- stitution, reaffirmed each state’s commit- ment to its own declaration of rights and
common law traditions.6
The legal and political history of Dela-
ware is graphically illustrated in the Dela- ware Constitutions of 1776, 1792, 1831 and 1897. Delaware has enacted specific provisions whereby its three branches of government operate differently from the federal system. For example, Delaware’s judges do not serve for life; the Gover- nor and Lieutenant Governor are elected separately and the powers of the General Assembly are not exercised in a manner that is a mirror image of the United States Congress. The Delaware Bill of Rights is also not a mirror image of the federal Bill of Rights.
Trial by Jury
It is probable that a jury was impan- eled in Delaware as early as 1669. By
1675, trial by jury had become a fixed in- stitution in Delaware. Delaware adopted its own Declaration of Rights in 1776, which guaranteed the right to trial by jury to all citizens of the State of Delaware and included a statement in Section 13 “[t] hat trial by jury of facts where they arise is one of the greatest securities of the lives, liberties and estates of the people.”
The right to a trial by jury in the Delaware Constitution is not phrased identically to its corollary in Article III, Section 2, Clause 3 of the original Unit- ed States Constitution or the federal Bill of Rights. In fact, the language in the 1792 Delaware Constitution regarding the right to a jury trial was strikingly similar to that right in the 1790 Penn- sylvania Constitution. Article IX, Sec- tion 6 of the 1790 Pennsylvania Consti- tution provided in part that “[t]rial by jury shall be as heretofore, and the right thereof remain inviolate.”
The decision to preserve the common law right to trial by jury in the 1792 Del- aware Constitution in terms almost iden- ticaltothe1790PennsylvaniaConstitu- tion is not surprising. Thomas McKean had drafted the 1776 Delaware Consti- tution with that common law right and was the leading proponent of perpetuat- ing that right in the 1790 Pennsylvania Constitution. John Dickinson, who had studied the common law in England, was the President of Delaware’s 1792 Convention and had unsuccessfully tried to perpetuate all features of the common law right to trial by jury in the original United States Constitution.
Two members of Delaware’s original congressional delegation, Senator Rich- ard Bassett and Congressman John Vin- ing, were also unsuccessful in providing for the common law right to trial by jury in the 1791 federal Bill of Rights. It is logical that when Delaware decided to perpetuate that right in the 1792 Dela- ware Constitution, it looked to the 1790 Pennsylvania Constitution for guidance. This was confirmed in an 1818 judicial opinion by then Judge Richard Bassett
in construing the 1792 Constitution. The “heretofore” language in both the 1792 Delaware Constitution and the 1790 Pennsylvania Constitution ef- fectively perpetuated the common law right to trial by jury, in the words of Congressman Vining, with “a simplic- ity of style.” A review of the history and origin of the right to trial by jury in the Delaware Constitution, vis-a-vis the history and origins of that right in the United States Constitution, reveals that the differences in phraseology between the Delaware and the federal right to trial by jury are not merely stylistic. There is, in fact, a significant substantive difference in that historic right as it has
been preserved for Delaware’s citizens. The historical origins of the right to trial by jury as provided for in the Dela- ware Constitution were reviewed by the
Delaware Supreme Court in Claudio v. State.7 In Claudio, the Court noted that when Delaware adopted a Bill of Rights in its 1792 Constitution, it did not create “a mirror image of the Unit- ed States Constitution” with regard to trial by jury, notwithstanding the effectuation of the federal Bill of Rights in 1791 after Virginia cast its vote for ratification.
The Delaware Constitution of 1792 provided that “trial by jury shall be as heretofore.” That is, the provision in the 1776 Delaware Constitution perpetuat- ing the guarantee of trial by jury as it existed at common law. Article I, Sec- tion 4 of the Delaware Constitution still provides that “[t]rial by jury shall be as heretofore.” This language has appeared in each Delaware Constitution and re- mained unchanged when Article I, Sec- tion 4 was amended as recently as 1984.
Since 1792, the courts of Dela- ware have always construed that provi- sion in the Delaware Constitution as “guarantee[ing] the right to trial by jury as it existed at common law.”8 Conse- quently, all of the fundamental features of the jury system, as they existed at common law, have been preserved for
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